Analysis: The ICC’s Treatment of Sexual and Gender-Based Violence Crimes

By: Nicole Cvercko

This article assesses the ICC’s jurisprudence, statutes and institutional structure with regard to SGBV crimes in light of its stated mandate and its 20th anniversary on July 17, 2018 as a permanent international court.

Introduction

The International Criminal Court (ICC) has been hailed the “victim’s court”, given its wide victim participation scheme at all stages of proceedings in comparison to its predecessor Tribunals.1Ashley Boyes, “The Victim’s Court? Sexual & Gender-Based Violence at the ICC” (3 September 2017), (2017) online: https://ilg2.org/2017/09/03/the-victims-court-sexual-gender-based-violence-at-the-icc/. Article 54(1)(b) of the Rome Statute requires the Prosecutor to ensure the effective investigation and prosecution of crimes within the Court’s jurisdiction taking into account the nature of the crime, particularly when it involves sexual violence, gender-violence, or violence against children.2UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6 art 54(1)(b) [Rome Statute]. To date, the ICC has only rendered one successful conviction for sexual and gender-based violence (SGBV) crimes in the decision of Mr. Jean-Pierre Bemba, which was later overturned by a divided Appeals Chamber on June 8th, 2018.3International Criminal Court, “ICC Appeals Chamber acquits Mr Bemba from charges of war crimes and crimes against humanity” ICC Press Release, (8 June 2018), online: https://www.icc-cpi.int/Pages/item.aspx?name=pr1390 [AC Bemba]. This article assesses the ICC’s jurisprudence, statutes and institutional structure with regard to SGBV crimes in light of its stated mandate and its 20th anniversary as a permanent international court. Particular focus is given to the interaction between the Lubanga Appeals Chamber (AC) decision for reparations and ineffective prosecutorial strategy for SGBV crimes, which rendered an outcome that lacked both symbolic justice and financial support for the injuries of SGBV victims. The Lubanga AC decision only allows for reparations for charged crimes which result in a guilty verdict. Thus, if SGBV crimes are dropped or do not result in a conviction, SGBV victims cannot benefit from individual reparations orders (although they may indirectly benefit from collective orders or TFV assistance programs).4Decision Establishing the Principles and Procedures to be Applied to Reparations, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-2904 Appeals Chamber (14 December 2012) [Lubanga AC]; see also Pearl Eliadis, “Lubanga: New Direction in Reparations Liability from the ICC” (2018) ...continue This occurs despite consistent social science data suggesting SGBV victims are the most in need of psychological and physical support services. However, SGBV crimes that have been dropped against the accused can be considered as aggravating factors in sentencing, upon a guilty conviction for a different crime according to the Policy Paper on Sexual and Gender-Based Crimes 2014.5Office of the Prosecutor (ICC), “Policy Paper on Sexual and Gender-Based Crimes” (2014), online: https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes–June-2014.pdf [Policy Paper]. Key lessons learned from prosecutorial planning related to SGBV crimes of former Tribunals are also considered in this paper as well as the recent cases of Mr. Dominic Ongwen and Mr. Jean-Pierre Bemba (AC). Until the Court can remedy deficiencies related to both prosecutorial strategy and the link between high-level actors and SGBV crimes by using extended modes of liability, it should revisit its reparations regime to reflect the reality that SGBV crimes invariably accompany armed conflict, whether or not an SGBV charge or conviction succeeds.

Reparations

The ICC offers both individual and collective reparations for victims with certain conditions. Reparations are an important advancement for victims and witnesses, as some victims, “have stated a preference for obtaining reparations even over seeing perpetrators tried in court.”6K. Alexa Koenig, Ryan Lincoln & Lauren Groth, “The Jurisprudence of Sexual Violence” (2011) Human Rights Center University of California, Berkeley at 25 [Groth]. They are a step forward from the International Criminal Tribunal for the former Yugoslavia where victims had to sue perpetrators directly and domestically in national courts to attempt to receive compensation.7Groth, supra note 6 at 24. ICC victims are of course still able to sue perpetrators directly domestically. However, given access to justice concerns generally (financial means of the victim, deficiency in the rule of law and court systems in corrupt countries), as well as conflict of laws concerns regarding enforcement (some perpetrators may be foreigners), the reparations regime has strategic advantages. Reparations as an alternative to civil liability may not meet the tort law benchmark of restoring the victim to their position had the harmful act not occurred, but the funds may certainly help ameliorate the victim’s position.

The Lubanga and Katanga decisions both include perpetrators acquitted of sexual violence and encapsulate ICC jurisprudence on reparations with the latter decision confirming the former. In Katanga, the Chamber noted reparations should be granted “without adverse distinction on the grounds of gender, age, race, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.”8International Criminal Court, “Katanga case: ICC Trial Chamber II awards victims individual and collective reparations” ICC Press Release, (24 March 2017), online: https://www.icc-cpi.int/Pages/item.aspx?name=pr1288 [Katanga Press Release]; see also Pearl Eliadis, “Reparations for Death and ...continue Despite this assertion with regard to gender, if the accused is not convicted of an SGBV crime, then the specific needs of predominately female victims may not be fully met by the reparation order due to the Lubanga AC decision. The Appeals Chamber in Lubanga confirmed the Trial Chamber’s principle, “reparations are to be awarded based on the harm suffered as a result of the commission of any crime within the jurisdiction of the Court.”9Lubanga, supra note 4 at para 65, 99. Sexual violence was not defined as a harm committed by Mr. Lubanga because Mr. Lubanga was not charged of crimes of sexual violence and also because sexual violence was not included within the gravity of Mr. Lubanga’s crimes.10Lubanga, supra note 4 at para 196. In conclusion, if the Prosecutor does not bring charges that encompass the full scale of victimization at the outset, errors and omissions cannot be resolved at the reparations stage.11Kinga Tibori-Szabo & Megan Hirst, “Victim Participation in International Criminal Justice Practitioners’ Guide” (2017) 11 International Criminal Justice Series at 395 [Hirst].

The Appeal Chamber’s reasoning in Lubanga regarding reparations may be sound in theory (earmark funds for convicted charges), but it ignores the reality and broader context in which sexual violence has accompanied most armed conflicts since time immemorial. Lubanga reinforces the gender bias of international criminal law as SGBV crimes in armed conflict are treated as collateral damage insufficient to warrant repair.12Louise Chappell, “The gender injustice cascade: ‘transformative’ reparations for victims of sexual and gender-based crimes in the Lubanaga case at the International Criminal Court” (2017) 21 Int Journal of Human Rights 9 at 1225. Ultimately, it is the victims of sexual violence who are likely the most in need of financial aid, as well as physical and mental support services. The World Wide Movement for Human Rights interviewed dozens of survivors and victims who participated in the Bemba trial for the Central African Republic.13World Wide Movement for Human Rights, “5,000 victims of Bemba’s crimes in Central African Republic anxiously await reparation” (20 November 2017), online: https://www.fidh.org/en/issues/international-justice/5-000-victims-of-bemba-s-crimes-in-central-african-republic-anxiously [WWMHR]; see ...continue Victims interviewed prioritized the need for individual compensation, as well as the need for community education regarding sexual assault stigmatization, because these factors have prevented them from reconstructing their lives with dignity.14WWMHR, supra note 13. Fifteen years have passed since the events of Bemba occurred, yet victims continue to live in extreme poverty suffering both physical and psychological harm including but not limited to: (1) contracting HIV/AIDS from rape, (2) being ostracized, shunned and/or rejected by their family or partner because they were raped, (3) abandonment by partners because they were raped, and (4) the abandonment of children born from rape.15WWMHR, supra note 13. Whether used as a systematic tool of warfare or considered a byproduct of war, the ICC’s complete failure to address SGBV crimes at the individual level undermines its stated commitment to restorative justice.

The TFV

The Trust Fund for Victims (TFV) operates separately from the ICC and aims to implement programs that address harms resulting from enumerated crimes with a primary focus on providing reparations and assistance programs.16Rome Statute, supra note 2 art 79; The International Criminal Court, Rules of Procedure and Evidence (last amended 2013), 2005, ISBN No. 92-9227-278-0 rules 70-73 [RoEP] rule 98. As permitted by the Rome Statute, the TFV often intervenes in situations where an accused is ordered to pay reparations by the Court, but is indigent.17Rome Statute, supra note 2 art 79; International Criminal Court, “Trust Fund for Victims” (2018), online: https://www.icc-cpi.int/tfv [TFV]. Despite the supposedly semi-autonomous mandate of the TFV with its separate Board of Directors, the ICC Pre-Trial Chamber ruled the TFV’s first and foremost responsibility is to ensure sufficient funds are available for a Court reparation order pursuant to article 75 of the Rome Statute.18International Criminal Court, “Decision on the Notification of the Board of Directors of the Trust Fund for Victims in Accordance with Regulation 50 of the Regulations of the Trust Fund” ICC-01/04-492 (11 April 2008) [BOD TFV]; Frederic Megret, “Justifying Compensation by the International ...continue About a quarter of the TFV budget is reserved for reparation orders and while the TFV controls the remainder of its funds, the TFV must ask the Court to launch an assistance program.19BOD TFV, supra note 18; Megret, supra note 18 at 140. Although the TFV is already active in some countries such as Uganda and the Democratic Republic of Congo with assistance programs with gender-specific interventions,20International Criminal Court, “At Global Summit to End Sexual Violence in Conflict, UK Foreign Secretary Hague announces £1 million contribution to TFV” ICC Press Release, (12 June 2014), online: https://www.icc-cpi.int/Pages/item.aspx?name=pr1015&ln=en. the TFV should explicitly earmark a large(r) portion of its assistance program funds to ameliorate the position of SGBV survivors.

Sentencing

In the Policy Paper on Sexual and Gender-Based Crimes 2014, the Office of the Prosecutor (OTP) commits to proposing sentences which give due consideration to the gender and sexual dimensions of the crimes charged with consideration at the individual and community level.21Policy Paper, supra note 5 at para 99. The Policy Paper interestingly states, “even where the evidence precluded the inclusion of sexual and gender-based crimes in the charges, the Office will give due consideration to any sexual or gender dimension involved in the crimes charged, which may be treated as an aggravating factor or as part of the gravity factor for the purpose of sentencing.”22Ibid at para 101. This provision reads like a reactive attempt to rectify the OTP’s lack of ability to charge the accused with a gender-based crime where one existed but could not be proved on the evidence. Additionally, it is at odds with Lubanga, decided one year after the Policy Paper, where the Court consciously decided not to take into account SGBV crimes that had been excluded from charges when making reparation orders. If evidence of SGBV-related crimes that were precluded from the accused’s charge can be considered during sentencing, they should absolutely be considered for the purposes of determining reparations. Sentencing temporally puts the accused’s freedom at stake and is a matter of natural justice, while reparations have significantly less influence on the accused given that more often than not, the accused is indigent and reparations are paid by the TFV. Additionally, given the principle of proportionality in the quantification of reparations, those convicted are only responsible for a fraction of the actual estimated costs of their overall harm.23For example, Trial Chamber II monetized Mr. Katanga’s physical, material and psychological harm at the value of $3,752,620 USD although due to the principle of proportionality his personal liability was valued at $1,000,000 USD; Katanga Press Release, supra note 8. Reparations can have a direct impact on ameliorating the life of SGBV survivors, while adding a couple years to a sentence that explicitly excludes SGBV charges is unlikely to improve the quality of life of SGBV survivors. Ultimately, the real issue lies in ineffective prosecutorial strategy and a poor reparations regime, which should both be addressed as they are more likely to result in substantive justice and financial aid to SGBV victims.

Prosecutorial Strategy

Compared to other crimes, charges for SGBV crimes are more vulnerable to being dismissed, re-characterized (narrowed) or dropped in the early stages of proceedings.24Women’s Initiatives for Gender Justice, “Gender Report Card on the International Criminal Court Anniversary Edition” (2014) ISBN 978-94-90766-13-9 at 111 [Report Card]. The Women’s Initiatives for Gender Justice studied 9 cases before the ICC and found 7 of 204 charges sought by the Prosecution had not been included in arrest warrants or summons to appear, five of which were SGBV charges.25Report Card, supra note 24 at 112. Additionally, there have been criticisms of the laying of charges for sexual violence, as well as the ‘narrowing’ of charges where crimes such as torture and outrages upon personal dignity are ‘subsumed’ by the charge of rape.26Phillip Weiner, “The Evolving Jurisprudence of the Crime of Rape in International Criminal Law” (2013) 54 B.C.L. Rev. 1207 (2013) at 1216 [Weiner]; Anne-marie De Brouwer, “What the International Criminal Court Has Achieved and can Achieve for Victims/survivors of Sexual Violence” (2009) ...continue For example, with regard to the situation in Uganda, five cases including that of Joseph Kony, were joined in a for a warrant.27Report Card, supra note 24 at 112. Widespread sexual violence was reported by many civil society actors in Uganda, yet only 2/5ths of the accused were charged with sexual violence related crimes.28De Brouwer, supra note 26 at 198. Of those two cases, the charges were considered insufficient given that they could also have included forced marriage, sexual slavery, and other inhumane acts.29De Brouwer, supra note 26 at 198; Women’s Initiatives for Gender Justice, “Amicus Curiae Observations of the Women’s Initiatives for Gender Justice Pursuant to Rule 103 of the Rules of Procedure and Evidence” (2009) ICC-01/05-01/08. Cumulative charging is apposite and required to capture the full magnitude and totality of harm suffered by victims, although the Pre-Trial Chamber in Bemba ruled in the alternative on this issue.30De Brouwer, supra note 26 at 200; International Criminal Court War Crimes Research Office, “The Practice of Cumulative Charging at the International Criminal Court” (2010), online: ...continue Additionally, gender-based crimes must not be mechanically equated with the narrow category of sexual violence, and instead gender-based violence can serve as evidence for seemingly gender-neutral crimes such as “other inhumane acts.”31Valerie Oosterveld, “Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes” (2009) 17 Journal of Gender, Social Policy & the Law 5 at 12 [Oosterveld]. Lastly, even when the charges laid are comprehensive, the Prosecutor faces an upward battle in proving SGBV crimes as demonstrated by the heavily criticized decision of Katanga and more clearly, by the ICC’s 0% success rate in convicting SGBV crimes. In Katanga, the Court arguably required a more deliberate intent or higher level of proof regarding Mr. Katanga’s contribution to crimes of rape when compared to other charges.32For example, the full bench unanimously confirmed all of the charges except the sexual violence charges which only received majority support, indicating one or more of the judges believed the sexual violence linkages to Mr. Katanaga may not be sufficient; Women’s Initiatives for Gender Justice, ...continue

There are unique challenges to prosecuting SGBV crimes, including the difficulty in collecting timely evidence due to underreporting, and difficulties in linking high-level commanders to low-level perpetrators of sexual violence.33International Criminal Tribunal for Rwanda, “Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda” (2014) [ICTR]. A key lesson learned from the Special Court for Sierra Leone is that the consideration of evidence must be gender sensitive.34Oosterveld, supra note 31 at 11. The Prosecutor sought and was denied based on timeliness, an amendment to the Civil Defence Forces (CDF) case indictment to include four new charges relating to sexual violence.35Ibid at 12. The majority thought the additional time needed by the accused to respond to these charges would cause an unreasonable delay of the trial.36Ibid at 17. However, it may take longer to secure evidence of gender-based crimes (especially sexual violence crimes) because of psychological trauma to survivors who may live in fear of ostracization and reprisals, as well as the general underreporting of these crimes.37Ibid. Additionally, prosecutorial planning may be to blame for the insufficiency of SGBV charges laid, along with a tendency to focus on “easier to prove” crimes such as murder.38De Brouwer, supra note 26 at 200. To combat this tendency, the Best Practices Manual of the International Criminal Tribunal for Rwanda (ICTR) suggests an “integrated approach” where sexual violence is given the same priority as other crimes, rather than marginalized or collateral treatment.39ICTR, supra note 33 at para 28. In contrast, the ICTR used a target-based approach which required investigating high-level actors. However, as these actors were not always the direct perpetrators of sexual violence, the requisite evidentiary link to the crime was lacking and so this approach failed.40Ibid at para 98. Thus, the ICTR Best Practices Manual suggests using a crime-based approach which requires an investigation of the crime, followed by identification of the perpetrators.41Ibid. Ineffective prosecution undermines both the deterrent effect and restorative justice aims of the ICC as powerful men continue to enjoy impunity for sexual violence they helped perpetrate, failed to prevent, or failed to appropriately punish and condemn within their ranks.

Future Considerations

The prosecution of Mr. Dominic Ongwen has potentially far-reaching consequences for SGBV victims, particularly if they are participating as witnesses at trial with independent legal representation. Mr. Dominic Ongwen was charged with 70 counts of war crimes and crimes against humanity, including SGBV crimes, although it should be noted the SGBV crimes were excluded from the original charges.42Coalition for the International Criminal Court, “Dominic Ongwen” (2018), online: http://www.coalitionfortheicc.org/cases/dominic-ongwen [Ongwen]. 1400 of 2026 victims participating in the Ongwen case are using two external legal representatives, while the remainder are relying on the Office of the Public Counsel for the Victims (OPCV).43Ongwen, supra note 42. Pre-Trial Chamber II decided the external lawyers did not qualify for financial assistance from the ICC, similar to legal aid, while the OPCV would be funded by the Court.44Ibid. Civil society organizations are concerned this decision may create a two-tiered system given the precedent that victims who choose their own legal counsel may not receive legal aid from the court.45Ibid.

The reversal of the only successful conviction for SGBV crimes by the Appeals Chamber decision of Bemba was seen as a devastating blow to not just the victims in the Central African Republic but the millions of SGBV survivors the ICC has in its jurisdiction by its own account.46The TFV in 2008 made a Donor Appeal estimating it had 1.7 million victims of sexual violence in its jurisdiction at that date; Trust Fund for Victims, “Rehabilitating and Supporting Victims of Sexual Violence” (2008), online: ...continue Jean-Pierre Bemba’s conviction was overturned largely on an analysis of the elements of command responsibility and procedural grounds which are beyond the scope of this paper. Nonetheless, Bemba was also the first successful conviction for criminal responsibility of a military commander and the broader repercussions of its nexus with rape as a weapon of war deserve some scrutiny.47Prosecutor v. Jean-Pierre Bemba Gombo, Case No.ICC-01/05-01/08 Judgement (21 June 2016) at para 542. Jurisdiction principles such as admissibility, complementarity, and sufficiency in gravity, ensure peripheral cases are not tried by the ICC, unlike its predecessor Tribunals which were able to prosecute the direct lower-level perpetrators of sexual violence.48Rome Statute, supra note 2 arts 1, 12, 17; Groth, supra note 6 at 21; University of Oslo Faculty of Law, “Sexual Violence in Armed Conflict under International Law” (15 March 2016) at 19, online: https://www.duo.uio.no/bitstream/handle/10852/51438/8020-HUMR5200.pdf?sequence=1 at 17. Direct perpetrators of sexual violence will necessarily escape ICC liability and international justice under the premise that their commanders will be held to account. Yet, the expanded modes of liability remain unexploited tools with remoteness issues and the difficulty of making a requisite link between the criminal SGBV act and the directions of high-level actors, illustrated in this case by the fact that Mr. Bemba gave commands from a different country.49AC Bemba, supra note 3. Ultimately, the ICC has unrealized potential to have serious impact symbolically and normatively to end the rampant impunity for SGBV, if it can definitively solve this troublesome linking issue.50Tina Dolgopol, “Gender, ethics and the discretion not to prosecute in the “interests of justice” under the Rome Statute for the International Criminal Court;” Alternative Perspectives on Lawyers and Legal Ethics (reimagining the Profession) (Routeledge New York: New York 2011) at 16; Groth, ...continue

Conclusion

The OTP has had the benefit of learning from the best practices of previous ad hoc international Tribunals that did not have the privilege of experience and precedent making its failure to successfully prosecute SGBV crimes all the more disappointing. First and foremost, the OTP must remedy issues with prosecutorial planning and investigation in future SGBV cases. In the interim, more can be done in relation to reparations and the TFV to ensure funds are reaching SGBV survivors that need them the most, given funds are currently contingent on elusive successful SGBV convictions. It is the responsibility of the Prosecutor under the Rome Statute article 54(1)(b) to ensure effective prosecution, including inter alia SGBV crimes. Victims of SGBV crimes should not be further disadvantaged monetarily by the OTP’s inability to fulfill its own mandate.

Nicole Cvercko recently graduated cum laude from the University of Ottawa Faculty of Law where she completed a specialization in international law. This analysis is based on her major paper submitted in her international criminal law course titled “The International Criminal Court’s (Mis)treatment of Sexual and Gender Based Violence.” Nicole has worked on humanitarian initiatives around the world including resettling the Rohingya for the UNHCR in Malaysia and providing emergency assistance with Patriot Defence, an NGO in Ukraine.

Image: Fatou Bensouda, Prosecutor of the International Criminal Court, at the Global Summit to End Sexual Violence in Conflict (June 12, 2014).
(c) Foreign and Commonwealth Office, Flickr.

International Criminal Court, “Decision on the Notification of the Board of Directors of the Trust Fund for Victims in Accordance with Regulation 50 of the Regulations of the Trust Fund” ICC-01/04-492 (11 April 2008) [BOD TFV]; Frederic Megret, “Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons from Domestic Compensation Schemes”, (2010) 36 Brook. J. Int’l L. 123 at 140 [Megret].

For example, Trial Chamber II monetized Mr. Katanga’s physical, material and psychological harm at the value of $3,752,620 USD although due to the principle of proportionality his personal liability was valued at $1,000,000 USD; Katanga Press Release, supra note 8.

Phillip Weiner, “The Evolving Jurisprudence of the Crime of Rape in International Criminal Law” (2013) 54 B.C.L. Rev. 1207 (2013) at 1216 [Weiner]; Anne-marie De Brouwer, “What the International Criminal Court Has Achieved and can Achieve for Victims/survivors of Sexual Violence” (2009) 16 International Review of Victomology 183 at 199 [De Brouwer].

27.

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Report Card, supra note 24 at 112.

28.

↑

De Brouwer, supra note 26 at 198.

29.

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De Brouwer, supra note 26 at 198; Women’s Initiatives for Gender Justice, “Amicus Curiae Observations of the Women’s Initiatives for Gender Justice Pursuant to Rule 103 of the Rules of Procedure and Evidence” (2009) ICC-01/05-01/08.

Valerie Oosterveld, “Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes” (2009) 17 Journal of Gender, Social Policy & the Law 5 at 12 [Oosterveld].

32.

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For example, the full bench unanimously confirmed all of the charges except the sexual violence charges which only received majority support, indicating one or more of the judges believed the sexual violence linkages to Mr. Katanaga may not be sufficient; Women’s Initiatives for Gender Justice, “Partial Conviction of Katanga by ICC Acquittals for Sexual Violence and Use of Child Soldiers, The Prosecutor vs. Germain Katanga”(2014), online: http://www.iccwomen.org/images/Katanga-Judgement-Statement-corr.pdf [WIGJ].

33.

↑

International Criminal Tribunal for Rwanda, “Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda” (2014) [ICTR].

Tina Dolgopol, “Gender, ethics and the discretion not to prosecute in the “interests of justice” under the Rome Statute for the International Criminal Court;” Alternative Perspectives on Lawyers and Legal Ethics (reimagining the Profession) (Routeledge New York: New York 2011) at 16; Groth, supra note 6 at 21.